IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11123

BILLY FRANK HALE,

Plaintiff-Appellant

v.

BRYAN COLLIER; MAJOR RICHARD WATHEN; TOMMY NORWOOD; 

FRANKIE HAYNES; JOSEPH EASTRIDGE,

Defendants-Appellees

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 7:16-CV-19

Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges. 

PER CURIAM:*

Billy Frank Hale, Texas prisoner # 693364 filed a state court complaint 

alleging that several defendants employed by the Texas Department of 

Criminal Justice failed to provide proper medical care for a back injury Hale 

suffered while working. The defendants removed the case to federal court, 

under 28 U.S.C. § 1331 and then moved to dismiss the action for failure to state 

a claim under Federal Rule of Civil Procedure 12(b)(6). Without discussing the 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 7, 2017

Lyle W. Cayce

Clerk

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No. 16-11123

2

defendants’ motions to dismiss, the district court dismissed the case on the 

ground that Hale was barred from proceeding in forma pauperis (IFP) in 

federal court under the three strikes bar of 28 U.S.C. § 1915(g). The court also 

denied Hale leave to appeal IFP and certified that the appeal was not in good 

faith. 

By now moving this court for leave to appeal IFP, Hale challenges the 

certification that his appeal is not in good faith. See Baugh v. Taylor, 117 F.3d 

197, 202 (5th Cir. 1997). His IFP request “must be directed solely to the trial 

court’s reasons for the certification decision.” Id. 

Under the so-called three strikes bar, a prisoner may not proceed IFP in 

a civil action, or appeal a civil judgment, if he has, on three or more prior 

occasions while incarcerated, “brought an action or appeal in a court of the 

United States that was dismissed on the grounds that it is frivolous, malicious, 

or fails to state a claim upon which relief may be granted unless [he] is under 

imminent danger of serious physical injury.” § 1915(g). 

The district court’s determination that Hale has three strikes under 

§ 1915(g) was based in part on a strike given in Hale v. Williams, No. 4:95-CV5021 (S.D. Tex. Sep. 14, 1998), in which some claims were dismissed for failure 

to state a claim, while others were dismissed on summary judgment. At the 

time of the judgment, unpublished authority supported giving a strike when 

only some claims were dismissed under § 1915(g). However, after this appeal 

was lodged, we held that “a strike does not issue when only some claims are 

dismissed on section 1915(g) grounds.” Brown v. Megg, __F.3d__, 2017 WL 

2057249, *1 (5th Cir. May 15, 2017). A claim dismissed on summary judgment 

should not be awarded a strike because it is “not dismissed on the grounds that 

it is frivolous, malicious, or fails to state a claim.” Id. at *4 (internal quotation 

marks and citation omitted). Accordingly, the dismissal in No. 4:95-CV-5021 

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should not have been counted as a strike. The district court counted only two 

other strikes, and we have discovered no other rulings against Hale that would 

count as a third strike. The dismissal based on the § 1915(g) bar was therefore 

incorrect

Accordingly, the motion for leave to proceed IFP on appeal is GRANTED. 

The district court’s judgment is VACATED, and the case is REMANDED for 

further consideration consistent with this opinion. Hale’s motion for a stay, 

injunction, or temporary restraining order pending appeal is DENIED.

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